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Sunday, February 07, 2016

The Email Saga

By John R. Bolton

The
more you know about the State Department, the worse Hillary's actions look.

For alumni of U.S.
national-security departments and agencies, Hillary
Clinton’s email saga is mind-numbing. The publicly available
information makes clear she and her aides violated so many elementary
security prohibitions that alumni are speechless. They wonder, had they
done what she did, how quickly they would have lost their clearances and jobs
and how extensive the criminal indictments against them would be.

By contrast, many who
have never served in government or dealt with classified information see the
affair as opaque, even overblown. Certainly Clinton has worked hard to
foster that impression. Leaving political spin aside, and without delving into
arcane legal analysis, which is it? What did Clinton and her entourage actually
do day-to-day, and what does it mean? In hopes of making things a little
clearer, herewith the observations of one State Department alumnus, who has
pondered how he would look in an orange jumpsuit were he in Clinton's shoes.

State, like other
national-security agencies, has both classified and unclassified ways for its
employees, especially the most senior, to communicate. Clinton erred in two
separate but often confused ways. First, she used private channels for
official government business, and second, she used unclassified channels to
send and receive classified information.

Her first error
violates basic common sense, familiar to any private business: Business
channels should be used for business purposes and personal channels for
personal purposes. Obviously, there can be ambiguity between business and
personal communications, such as one spouse asking another, "When will you
be home for dinner?" But in Clinton's case, there seems to be no ambiguity:
She simply did not use government channels for her electronic communications.
Her motive was almost certainly to put information she alone deemed personal
beyond government access, which is impermissible even for the most junior
clerk, let alone the secretary of state. Clinton's private email system by
definition undercuts her defense that she complied with government
record-keeping requirements because all her emails went to unclassified
government accounts (such as her aides'). Without full access to her
server, why should we believe Clinton didn't send emails to aides' private
email addresses, thereby shielding them entirely from potential government
retrieval?

Clinton's second
error, using unclassified email systems—whether her private accounts or
State's unclassified email system (through her aides)—to transmit material
that should have remained in classified channels,is the nub of the
email issue. Clinton has asserted that what she did with her private
channels was "allowed." Yet she has produced no evidence whatever
of who did this "allowing" that was contrary to applicable statutes
and express State Department regulations involving official business and
information security.

Clinton clearly did
not vigorously pursue normal State procedures to have her private email server
legitimized. Had she somehow gotten the necessary signoffs from the bureaucracy,
she would have at least had cover from the current firestorm, and we would have
heard about it long ago. Far more likely, she realized that, had she asked
plainly, she would have been told plainly that her scheme was way out of
bounds.

How should she have
pursued standard approval procedures from department officials responsible for
legal compliance and security requirements? She could have solicited an opinion
from State's legal adviser, the department's general counsel. Either verbally
or in writing, she could have described what she proposed to do and asked if it
was acceptable. There is as yet no evidence that anyone contacted the legal
adviser's office on this subject. Perhaps Harold Koh, legal adviser under
Clinton (now back at Yale Law School), can inform the public debate by telling
us whether he was ever aware of what Clinton was doing. Or the FBI could ask
him directly. (There is no attorney-client privilege issue here; Koh's
client was the U.S. government, not Clinton personally.)

Similarly, State's
executive secretariat (charged with the critical bureaucratic task of managing
paper flows and records of decisions by Clinton and other key officials) would
have been utterly remiss if it were blind to Clinton's ignoring government
communications channels, let alone security requirements. And other State
offices like the Bureau of Diplomatic Security (charged among other things with
the secretary's safety) and the Bureau of Information Resource Management
had important equities at stake. Were they, or their boss, under secretary
for management Patrick Kennedy, ever consulted or informed about Clinton's
practices in whole or in part? And has the FBI talked with any of these people
yet?

Clinton's next line
of defense, as she stated January 31: "There is absolutely no evidence
that I sent or received any email marked classified." Of course, using a
private email account or even State's unclassified email system and marking
emails classified would be an immediate, incontrovertible admission that security
requirements had been violated. The way to avoid creating such evidence is
not typing "Secret" or the like in the emails. That gambit, however,
cannot declassify information already classified or classifiable.

What exactly were
Clinton's aides doing that resulted in classified material being exchanged
among them? Here, it helps to understand how classified information, especially
highly sensitive material, is distributed within State. Some particularly
sensitive intelligence is available only in hard copy. Scanning it into an
unclassified email system would mean retaining the original classification
markings, an exceedingly incriminating action, as explained above. Considerably
more classified information is available electronically, but it cannot be transmitted
from the classified to the unclassified system except by State Department
technicians in very limited circumstances. For example, you cannot attach a
classified document to an email on the classified system and send it to an AOL
or Gmail account. One of the most fundamental protections for secure IT systems
is that they are not connected to the Internet. When I was at State, for
example, I had two computers behind my desk connected to completely separate
classified and unclassified systems.

Given these obstacles
to readily transferring classified materials into unclassified emails, what
almost certainly happened is this: Clinton aides would read classified
documents, either hard or electronic copies, and type the information,
paraphrased or verbatim, they wanted to transmit into unclassified emails.
They would then send them to Clinton, unflagged in any way as containing
classified material. She could forward an email to someone else, or send it
back in reply. That's why so many emails are now redacted. If the FBI is
doing its job, it will interview the senders of those emails, asking them how
they obtained the information they transmitted.

Most emails released
to date were exchanged among Clinton's close political circle at State, but
some originated from career personnel. This is a particularly pernicious, if
little-noticed, consequence of her disdain for proper security: dumbing-down
security protections department-wide. State's bureaucracy knows no higher
career goal than getting face time with the secretary or otherwise getting
their names before her. No Washington bureaucracy is cleverer in figuring
out how to reach that objective. Very likely, some number of senior State
careerists knew of Clinton's private email and accordingly communicated much of
what they wanted her to see in unclassified form, thereby breaching security.
More fodder for the FBI.

But, Clinton pleads,
she did not originate any emails with classified information. Even if true,
Clinton, the queen bee of this scheme, unarguably understood the game. In one
known instance, proving the point clearly, she instructed an aide to delete
classification markings and send classified material on an unclassified fax.
If this isn't evidence of "specific intent" for prosecutors, nothing
is. It is delusional to say that an experienced, well-briefed official wouldn't
have had a good and growing sense of what should be classified, whether the
material originated with her or not. Clinton served for six years on the Senate
Armed Services Committee, where she saw significant amounts of classified
information. She was no babe in the woods when she came to State. Once
there, moreover, she signed a standard non-disclosure agreement that by its
express terms defines classified information as "marked or unmarked
. . . including oral communications."

Clinton tries to
minimize the seriousness of her error by arguing, as she did during the January
31 interview, that having hundreds of her emails wholly or partly redacted
before release is nothing but "classification in retrospect." This
dodge is either deceitful or utterly uneducated. To argue, as Clinton does,
that information properly unclassified at the time she received it can grow
more sensitive as time passes is so breathtaking it almost defies physical
reality.

For the vast bulk of
classified government documents, the potential damage from being leaked
diminishes over time, largely for two reasons. First, time sensitivity is a
significant factor in classification decisions. When, for example, a U.S.
diplomat receives intelligence about negotiations in real time, the need to
shield the information as highly classified may be very transitory. Even just
days later, its value may have largely dissipated. Second, the passage of time
almost invariably reduces the damage to the United States if the information
gets into the wrong hands. Thus, immediately leaking sensitive information can
be highly damaging, but leaking it a year later may only be embarrassing, while
in five years there may be essentially no harm at all.

The situation is
different, and much worse for Clinton, regarding intelligence gathered through
sensitive sources and methods. While the significance of the content itself
likely diminishes over time, the sensitivity of sources and methods can last
decades or longer. Compromising these sources could put lives at risk and
ruin billion-dollar collection systems. This is
certainly true for "Special Access Program" (SAP) reports, recently
prominent because even the State Department withheld 22 Clinton emails in their
entirety because they contained SAP material.

State's current
leadership, however, is clearly trying to provide cover for Clinton by
disputing classification decisions of other agencies. Bureaucrats often engage
in such internecine warfare, but the operating principle has long been that
the classifier of information retains control over its distribution and release.
This principle rests on the common-sense notion that the agency originating or
acquiring the information is best-positioned to decide how much protection it
requires. State would feel the same way the intelligence community feels today
about Clinton's callous disregard for its judgments if, for instance, the
Defense Department decided to declassify State reporting cables. Significantly,
as Fox News's Catherine Herridge has reported, the FBI is asking the
originating agencies for their judgments, rather than relying on State's post
facto obstructionism.

Finally, Clinton is
calling for all of her emails to be disclosed publicly. This is the most
hollow, hypocritical ploy of all. She knows with certainty that the
administration will not release them. The classification protections are
not Clinton's to waive, any more than she could waive executive privilege
on her emails with President Obama if he determined to keep them privileged.
And we now know, despite earlier denials all around, that Obama and Clinton did
indeed communicate through her private channels.

Clinton has many
other points of vulnerability that have barely been noticed. For example,
hostile intelligence services can remotely capture control of cell phones and
other electronic devices with microphones and have them transmit back
everything the microphones pick up, even when the devices are apparently turned
off. This is why, on entering a secure classified information facility, people
must leave their electronic devices outside the room. This is also why senior
U.S. officials are asked not to bring cell phones and laptops when they visit
countries like Russia and China, because of the severe risk the equipment could
be compromised during their trips. Yet for four years, Clinton and her top
political staff apparently traveled worldwide with personal electronic gear
such as cell phones and iPads, ignoring specific recommendations from State IT
personnel not to do so.

We have just scratched
the surface here of the irregularity of Clinton's practices while at State. And
that could be the FBI's hardest job: how to find sufficient resources to
investigate properly before the suspect becomes their boss. The race is on.

John R. Bolton, a
senior fellow at the American Enterprise Institute, served as U.S. ambassador
to the United Nations in 2005-06.

About This Blog & the National Black Republican Association

Lieutenant Colonel Frances Rice, United States Army, Retired is a native of Atlanta, Georgia and retired from the Army in 1984 after 20 years of active service. She received a Bachelor of Science degree from Drury College in 1973, a Masters of Business Administration from Golden Gate University in 1976, and a Juris Doctorate degree from the University of California, Hastings College of Law in 1977.
In 2005, she became a co-founder and Chairman of the National Black Republican Association, an organization that is committed to returning African Americans to their Republican Party roots.
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Email contact: NationalBlackRepublican@Gmail.com